Probate Attorney
Probate is often considered something to avoid but in reality, it is merely a process. While managed through the courts, the steps are largely transactional. The court’s role is to assure that everything happens fairly as dictated by the will or the intestate statutes.
Since this is run through the court, attorney assistance is essential. You will be required to file particular documents and reports if you wish to assure a fair distribution of your loved one’s assets. At Gold & Associates, P.C., we make this process as smooth as possible.
What is Probate?
Probate is the formal legal process that manages an estate. The estate is the collection of property and income that remains after someone dies. Since dead people cannot own property or continue collecting income, those interests need to be passed on to heirs, who can be friends, family members or charitable causes.
If there is a will, it will undergo a testate probate. The court will review the will and appoint the personal representative, who is normally named in the will. That individual will distribute property as the will states.
Probate proceedings are also involved if someone dies without a will. These are more involved since there is often no idea of the deceased’s wishes. Called an intestate probate, it will start by appointing a personal representative to manage the estate and then determine who inherits the assets.
What Does Probate Involve?
The probate process starts with filing several documents in the county probate court. It will either include the will or indicate that the deceased died without a will. The court proceeds to appoint the personal representative named in the will or in the petition. That administrator can be a family member, friend or institution, like the probate division in a bank. The process if often done unsupervised without the need for court hearings unless circumstances are such that hearings are needed.
Once started, creditors and potential heirs receive notice of the probate process. Creditors can file claims so they are paid as assets become available. Heirs can also file claims showing their interest in the estate.
The personal representative produces an inventory of assets, cash, and real estate subject to distribution. First, funeral expenses, attorney fees and valid creditor claims are paid. Next, the remaining property is distributed as indicated through the will provisions or intestate statutes.
Happens If There Are Disputes?
Probate can involve litigation. The most common claim is that the will is invalid. That can rest on any of the following grounds:
- Duress
- Mental incompetency
- Undue influence
- Another valid will exists
Will contests are difficult to prove and often involve bringing in the witnesses to the signing. Parties can testify whether the deceased seemed intimidated or confused at the time or if everything happened correctly without duress. These challenges are usually filed by people who expected to benefit from the will but received much less than expected or nothing.
There are also claims when the decedent overlooked a child or did not update a will to include children born after it was drafted. In these cases, the court will often rule in the interest of justice to include these children in the distribution.
The personal representative may also challenge a creditor claim. That often arises when medical bills are erroneous or a creditor fraudulently files a claim. In this instances, the personal representative will file an objection to the claim, normally requesting more documentation to justify its payment.
While there is always the chance of a dispute and litigation in the probate process, it is fairly uncommon. It is best to be prepared which is another reason to have an attorney involved when facing probate.
Is There a Small Estate Option?
Almost all individuals leave property behind when they die. However, sometimes the worth of those assets does not justify a probate process. For that reason, Michigan offers an option for these small estates.
If an estate is valued at $21,000 or less as adjusted after funeral expenses, the property can be distributed through a small estate one day probate.
There are many overwhelming elements in probate in addition to grieving the death of your loved one. That is why you require legal guidance through this time so you can complete this process smoothly and fairly. For a free probate consultation, call Gold & Associates, P.C. at (734) 335-7100 to get started.